Criminal Revision Application No.79 of 2006

11th October, 2006

Petitioner Counsel: Mr. V. M. GADKARI
Respondent Counsel: Mr. D. S. PATEL

Cases Cited:
Rabindrakumar Vs. State, AIR 1977 SC 170 [Para 5,8,9]
State of Bihar Vs. Lalu Prasad alias Lalu Prasad Yadav, AIR 2002 SC 2432 [Para 5,8]

JUDGMENT

JUDGMENT :- Heard Mr. Gadkari, Advocate for applicant and Mr. Patel, A.P.P. for state.

2. Admit. Heard finally with the consent of the parties.

3. The applicant is taking exception to the order passed by the Special Court for Anti corruption Bureau, Nagpur in Special Case No.17/2000 by which he allowed the prayer of the prosecution to declare the witness under examination i.e. Advocate Pundlik Atmaram Wadibhasme hostile.

4. Fact leading to this revision shortly stated are thus. There is Special Case No.17/2000 (State of Maharashtra Vs. Dinkar Dambare) pending before the Special Court for A.C.B. Nagpur. When the trial was going on, one Advocate Pundlik Wadibhasme was examined as witness no.3 on behalf of the prosecution. His examination-in-chief was recorded. Then he was under cross-examination. When the cross-examination was being undertaken by the learned counsel for the accused, he gave some admissions. Thereafter, A.P.P. who was conducting the prosecution sought permission to declare him hostile and to cross-examine him. After hearing the parties, the learned Special judge allowed the prayer of the prosecution to declare the witness hostile and permitted him to cross-examine. Relevant order reads thus :

"Order

(APP requested permission to cross-examine the witness.) and to declare witness hostile on the ground of admission by witness that he repaid amount of fees to accused which was earlier given to him by accused. Defence counsel Shri. Gadkari opposed the request of APP and submitted that if witness admits certain things favourable to defence it could not be a ground for declaring witness hostile. Commentary of Section 154 as to declare witness as hostile that it provides that the court may he needs discretion a person who calls to witness to put any question which might be put in cross-examination. The evidence in his examination in chief deposed that accused demanded bribe amount of Rs.2000/- he submitted complaint and he gave bribe amount to accused. In his cross-examination witness admits that he had given amount of Rs.2000/- to the accused, said admission gives U turn to his testimony, negativing whole prosecution case. Therefore, the witness is declared hostile and APP is permitted to cross-examine the witness."

This order is challenged in this revision petition.

5. Learned counsel for the applicant who is accused in the said case, has contended that the statement of the witness, which made the learned Special Judge to allow the prosecution to declare him hostile and cross-examine the witness can not be said to be a statement of hostility. Further according to him, said admission was given by the witness, in the cross-examination. Said admission can not be said to be deliberate admission to destroy the prosecution case. Further according to him if such permission is granted then in all such cases, permission to declare the witnesses hostile will have to be granted and it cannot be a sound legal process, as these admissions are given in the cross-examination. He has relied on the observations of the Apex Court in Rabindrakumar Vs. State, AIR 1977 Supreme Court 170 and AIR 2002 SC 2432, State of Bihar Vs. Lalu Prasad alias Lalu Prasad Yadav.

6. As against this learned APP has contended that witness had supported the prosecution in examination in general, however, he resiled from his earlier statement in cross-examination and therefore permission was sought to declare the witness hostile and to cross-examine him, which the learned Special Judge, rightly accorded and therefore, that order does not call for any interference.

7. The only point that falls for consideration is whether the impugned order of the learned special Judge is correct, proper and just at law.

8. Before proceeding further, it is necessary to bear in mind the observations of the Apex Court in AIR 1977 SC 170 and also AIR 2002 SC 2432.

9. Relevant observations in Rabindrakumar Dey's case i.e. AIR 1977 SC 170 read thus :

"10. Before proceeding further we might like to state the law on the subject at this stage. Section 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the court to cross-examine them Section runs thus :

"The Court may in its discretion permit the person who calls witness to put any question to him which might be put in cross-examination by the adverse party."

The section confers a judicial discretion, on the court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion it is, however, well settled that the discretion must be judiciously and properly exercised in the interest of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances in which this court sustained the order of the court in allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence. In Dahyabhai Vs. State of Gujrat, (1964)7 SCR 361 at PP 368, 369, 370 (AIR SC 1563 at P.1569) this Court made the following observations :

"Section 154 does not in terms, or by necessary implication confine the exercise of power by the court before the examination in chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination in chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot during the course of his cross-examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party."

"Broadly stated, the position in the present case is that the witness in their statement before the police attributed a clear intention to the accused to commit murder but before the court they stated that the accused was insane and therefore, he committed the murder."

A perusal of the above observations will clearly indicate that the permission to cross-examine was upheld by this court because the witness had categorically stated before the police that the accused had committed the murder but resiled from that statement and made out a new case in evidence before the Court that the accused was insane. Thus, it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witness cannot be allowed. In other words, a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention.

11. It may be rather difficult to lay down a rule of universal application as to when and in what circumstances the court will be entitled to exercise its discretion under section 154 of the Evidence Act and the matter will largely depend on the facts and circumstances of each case and on the satisfaction of the court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. It seems to us that before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides or transferred his loyalty to the adversary. Furthermore, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the court to exercise its discretion. The Court, before permitting the party calling the witness to cross-examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner.

12. It is also well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him as unreliable witness so as to exclude his evidence from consideration altogether. In Bhagwan Singh Vs. State of Haryana (1976)1 SCC 389, 391-92 = (AIR 1976 SC 202 at P.203), Bhagwati J. speaking for this court observed as follows :

"The prosecution could have even avoided requesting for permission to cross-examine the witness under section 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence."

10. Further the relevant observations in AIR 2002 SC 2432 State of Bihar, in paragraph 5 and 6 read thus :

"5. Nonetheless a discretion has been vested with the Court whether to grant the permission or not. Normally when the public prosecutor request for permission to put cross questions to a witness, called by him, the Court used to grant it. Here if the public prosecutor had sought permission at the end of the chief examination itself the trial court would have no good reason for declining the permission sought for. But the public prosecutor did not do so at that stage. That is precisely the reason why the trial Judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. The witness has said only the details in cross-examination regarding the matter which he said in the chief examination itself. It would have been a different position if the witness stuck to his version he was expected to say by the party who called the witness, in the examination-in-chief, but he showed propensity to favour the adverse party only in cross-examination. In such case the party who called him has a legitimate right to put cross questions to the witness. But if he resiled from his expected stand even in chief-examination the permission to put cross questions should have been sought then.

6. In the above situation we are unable to hold that the trial Judge has gone wholly wrong in declining to exercise the discretion envisaged under Section 154 of the Evidence Act in favour of the applicant. Be that as it may, if the public prosecutor is not prepared to own the testimony of the witness examined by him he can give expression of it in different forms. One of such forms is the one envisaged in section 154 of the Evidence Act. The very fact that he sought permission of the court soon after the end of the cross-examination was enough to indicate his resolve not to own all what the witness said in his evidence. It is again open to the public prosecutor to tell the Court during final consideration that he is not inclined to own the evidence of any particular witness in spite of fact the said witness was examined on his side. When such options are available to a public prosecutor it is not a useful exercise for this court to consider whether the witness shall again be called back for the purpose of putting cross questions to him."

11. It would be clear that the witness can be declared hostile, even at the stage of cross-examination, only thing which is necessary is that the witness should make a statement which is not reconcilable to his evidence in examination-in-chief and is tending towards hostility to the party calling him. The court has to consider the circumstances & earlier evidence/statements before investigating Agency in totality and then consider the prayer of the party to declare a particular witness called by him his as hostile witness while allowing the said party to cross-examine his own witness.

12. Inadvertent admissions or admission which are tending to state the facts correctly, can not be sufficient reason to allow the prayer of declaring a witness hostile. This is totally within the discretion of the concerned court, though the said discretion is to be used and exercised judiciously.

13. With this background, it is necessary to find out as to whether the impugned order of the learned Special Judge is incorrect, improper and unjust at law. On perusal of the evidence led by him, in examination-in-chief, it would be seen that he has stated :

"Accused asked who was accompanying me. I told accused that the person accompanying me was the elder brother of Punjaram. Then accused asked me whether his work was done. I told accused that amount of Rs.2,000/- arranged was brought by me. Accused said give amount. On that I taken notes from chest pocket by my right hand and given to the accused. The accused handled notes bundle with his both hands. I given agreed signal by cleaning my face with handkerchief and kept that handkerchief on my right shoulder. On my signal members of trap party came to the place. ACB officer asked panch Vasant Pawar where amount was Panch Vasant Pawar told ACB Officer that notes were kept in back pocket of pant of accused. Two constables caught both hands of accused."

14. In cross-examination, he stated thus :

"After accused parked his motorcycle I greeted him. It is true accused asked me whether I had brought amount for return of fees, it is true I returned amount of Rs.2000/- for fees to the accused. It is true that accused received amount from me and kept in pocket of his pant. It is true at that time accused said I did good thing by returning his amount."

15. This will show that in cross-examination he has tried to answer the suggestion given by the learned counsel for the defence making out a story that he wanted to return the amount of Rs.2000/- of fees to the accused and it was not a bribe amount.

16. Learned counsel for the applicant has tried to contend that the story propounded by the witness in his cross-examination is the correct story and it is in consonance with the statement made by him before the I.O. and therefore, the witness should not have been declared as hostile.

17. In order to assess this submission, I have gone through the relevant statement of the witness before the Police. On perusal of the same, it does not appear that this witness had stated before the Investigating Officer that the amount which he paid to the accused was the amount which was to be returned to him. What he has stated before the Investigating Officer thus :

"Accused asked this witness - Vakilsaheb whether you have done the work told to him. Witness answer Saheb as per your say i.e. of the accused amount of Rs.2000/- was collected and brought. Accused told O.K. give them, but rest of the amount be paid by 10th, then this witness stated O. K. Saheb and this amount was paid to him which he kept in the pocket of his pant. Further part of the statement shows that this witness had asked accused not to give troubles to his man in Hawala and the witness stated not to worry."

18. Therefore, this statement, before the Investigating Officer no way suggests that the witness had told before the Investigating Officer to suggest that he had paid that amount to return his fees. On the contrary, the statement shows that he was paying bribe to the accused in pursuance to the trap which was laid by the Investigating Officer.

19. All these circumstances will go to show that the witness has tried to disown the prosecution case skillfully in the cross-examination to support defence and therefore, the prosecution had sought permission to declare him hostile and cross-examine him under section 154 of the Evidence Act.

20. As already pointed out above, from observations of the Apex Court in the above referred judgments, the witness can be declared hostile if he does not support the party which called him. The admissions which are tending to suggest true case may not be sufficient to declare him hostile, but essentially when his admissions in the cross-examination tend to destroy the prosecution case, the prosecution is certainly entitled to seek declaration of his hostility with a permission to cross-examine him. If a Public Prosecutor does not take this step, in such cases, in my opinion he would be failing in his duty as prosecutor in conducting prosecution. It is ultimately for the court to consider even if the witness is declared hostile and allowed to be cross-examined as to which part of the evidence of such witness is reliable or not, after hearing the parties and therefore, even if such permission is granted to the prosecution it may not in all cases vitiate the admissions given by him provided they are found truthful and acceptable by the courts deciding such cases.

21. In these circumstances, I do not find that the order passed by learned Special Judge, impugned in this revision, is incorrect, improper and unjust at law and therefore, it does not call for any interference in this revision.

Revision application is dismissed.